Citation Nr: 1033694
Decision Date: 09/08/10 Archive Date: 09/15/10
DOCKET NO. 06-34 326A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in White River
Junction, Vermont
THE ISSUE
Entitlement to service connection for a right shoulder
disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
D. M. Donahue, Associate Counsel
INTRODUCTION
The Veteran had active military service from April 1968 to
January 1971.
The appeal comes before the Board of Veterans' Appeals (Board)
from a September 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in White River
Junction, Vermont, which denied entitlement to service connection
for a right shoulder disability.
The Veteran testified during a hearing before the undersigned
Veterans Law Judge in January 2009; a transcript of that hearing
is of record.
In July 2009, the Board remanded this matter to the RO to afford
due process and for other development. Following its completion
of the Board's requested actions, the RO continued the denial of
the Veteran's claims (as reflected in a July 2010 supplemental
statement of the case (SSOC)) and returned this matter to the
Board for further appellate consideration.
The Veteran, in a July 2009 statement, and through the
submission of VA treatment records, has submitted a claim
for an increased disability rating for bilateral hearing
loss. As such, this matter is REFERRED to the RO for any
appropriate development.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. A right shoulder disability is shown to have at least as
likely as not been aggravated by active service.
CONCLUSION OF LAW
A right shoulder disability was incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) are applicable to this
claim. Because of the decision in this case, any deficiency in
the initial notice to the Veteran of the duty to notify and duty
to assist in claims involving a disability rating and an
effective date for the award of benefits is harmless error.
Laws and Regulations
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active military
service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §
3.303. Service connection may be established for any disease
diagnosed after discharge, when all the evidence, including that
pertinent to service, establishes the disease was incurred in
service. See 38 C.F.R. § 3.303(d).
As a general matter, service connection for a disability on the
basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or nexus
between the current disability and any injury or disease during
service. See Cuevas v. Principi, 3 Vet. App. 542 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
VA law provides that a veteran is presumed to be in sound
condition, except for defects, infirmities or disorders noted
when examined, accepted, and enrolled for service, or where clear
and unmistakable evidence establishes that an injury or disease
existed prior to service and was not aggravated by service. 38
U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009). Only
such conditions as are recorded in examination reports are to be
considered as noted. 38 C.F.R. § 3.304(b) (2009).
To rebut the presumption of sound condition under 38 U.S.C.A. §
1111, VA must show by clear and unmistakable evidence both that
the disease or injury existed prior to service and that the
disease or injury was not aggravated by service. See VAOPGCPREC
3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) as then in
effect was inconsistent with 38 U.S.C. § 1111 to the extent that
it stated that the presumption of sound condition may be rebutted
solely by clear and unmistakable evidence that a disease or
injury existed prior to service). The claimant is not required
to show that the disease or injury increased in severity during
service before VA's duty under this rebuttal standard attaches.
See Cotant v. Principi, 17 Vet. App. 116 (2003).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that "the government must show clear
and unmistakable evidence of both a preexisting condition and a
lack of in-service aggravation to overcome the presumption of
soundness for wartime service under section 1111." Wagner v.
Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit
noted that the government may show a lack of aggravation by
establishing that there was no increase in disability during
service or that any "increase in disability [was] due to the
natural progress of the" preexisting condition. Id.
A preexisting injury or disease will be considered to have been
aggravated by active military service, where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. Aggravation may not be conceded,
however, where the disability underwent no increase in severity
during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §
3.306 (2009).
Finally, in a claim for service connection, the ultimate
credibility or weight to be accorded evidence must be determined
as a question of fact. The Board determines whether (1) the
weight of the evidence supports the claim, or (2) the weight of
the "positive" evidence in favor of the claim is in relative
balance with the weight of the "negative" evidence against the
claim: the appellant prevails in either event. However, if the
weight of the evidence is against the appellant's claim, the
claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Factual Background and Analysis
The Veteran contends that although he had a right shoulder
disability upon joining the military, his condition subsequently
worsened as a result of military service.
The Veteran's DD-214 reflects that during service, his military
occupational specialty was marine mechanic.
The Veteran's February 1968 enlistment examination report noted a
10-inch surgical scar of the right shoulder, and described the
right shoulder as stable with full range of motion. The report
also called attention to a private physician letter. In the
private physician letter dated in February 1968, the orthopedist
affirmed the Veteran's history as follows: the Veteran was
hospitalized on September 14, 1967 because of an acute
acromioclavicular (AC) separation of the right shoulder. He
underwent an open reduction with internal fixation of the right
AC joint and a repair of the coracoclavicular ligaments. In
October 1967, the Veteran was readmitted to the hospital for
removal of the wire fixation of the AC joint. In a January 1968
follow-up, the physician reported that the Veteran was working
full time in a garage, and had no pain with work, although he did
have some aching in stormy weather and some discomfort in the
extremes of abduction elevation of the right shoulder. At the
time, he exhibited full range of motion of the shoulder without
any crepitation, swelling, or tenderness over the AC joint. The
physician referred to an x-ray report from that time which showed
some calcification present in the area of the coracoclavicular
ligaments and some early degenerative changes of the AC joint of
the right shoulder. The physician also reported that the Veteran
was to follow up in June 1968.
The Veteran's service treatment records are silent for any
treatment of a right shoulder disability while in service. In
the Veteran's January 1971 separation examination report, the
physician marked the upper extremities as normal.
In a March 2005 VA orthopedic consultation note, the Veteran
complained of chronic shoulder pain since he underwent open
reduction and internal fixation at 18 years old.
In his January 2009 Board hearing, the Veteran testified that
while in active service he was a machinist mate and that his job
required daily heavy lifting. Although he did not receive
treatment in service, he self-medicated with aspirin, and about
six months after release from service he sought treatment. He
asserted that he had excruciating pain and no motion prior to
service, and that while in service his pain increased. After
service, the Veteran was a self-employed painter and worked as a
truck driver for a furniture company.
During a December 2009 VA examination, the Veteran complained of
progressively worsening right shoulder disability. He reported
treatment with medication and activity limitation. Upon
examination, the physician diagnosed right shoulder arthritis.
The physician further noted that the injury and surgical
treatment started the cascade that has resulted in severe
degenerative arthritis of the glenohumeral and acromioclavicular
joints. He indicated that the activity performed in service
contributed to the degeneration and that although the service
treatment records are reported without need for medical
evaluation, treatment, or restriction, the Veteran reports
significant problems during service.
Social Security Administration disability records indicate the
Veteran is considered disabled due to an October 2006 workplace
injury. The primary diagnosis is neuropathy of the right heel,
with secondary diagnosis of back disorders.
In view of the totality of the evidence, including the Veteran's
documented right shoulder disability, his current complaints of
persistent right shoulder pain since service, and the opinion of
the December 2009 VA physician as to the aggravation of a pre-
existing right shoulder disability during service, the Board
finds that the Veteran's right shoulder disability was as likely
as not aggravated by his active service. Consequently, the Board
finds that, resolving reasonable doubt in the Veteran's favor,
service connection a right shoulder disability due to aggravation
is granted.
ORDER
Entitlement to service connection for a right shoulder disability
is allowed.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs